2004 Ohio 3344 | Ohio Ct. App. | 2004
{¶ 2} Austin Fox was born to defendant-appellee, Debra K. Fox, n.k.a. Debra K. Ebert ("Debra"), and appellant on June 6, 1993. At that time, appellant and Debra had been married for six years, having married in June of 1987. Appellant and Debra petitioned for dissolution of their marriage on November 3, 1998, and a Decree of Dissolution was granted by the court on December 23, 1998.
{¶ 3} The 1998 Decree incorporated a Separation Agreement, created between the parties, which governed, among other things, spousal support, child support, medical costs, and educational decisions and expenses. Specifically, as it pertains to this case, the parties agreed, "based upon the division of time between the parties," to a deviation in the calculation of child support, whereby appellant agreed to pay $250.00 per month. Initially, the Record indicates that the trial court failed to calculate child support pursuant to Ohio Revised Code §
{¶ 4} The Separation Agreement also contained Article 3, the "Shared Parenting Plan," and Article 4, "Visitation," which governed the division of parental responsibilities over Austin and visitation rights. The Agreement provided that Debra would be the residential parent, and also provided visitation rights for appellant. Visitation consisted of every other weekend, Wednesday nights during those weeks, and Tuesday and Thursday nights on the alternative weeks. Also included were special provisions governing holidays and summers.
{¶ 5} On April 17, 2002 the Hancock County Child Support Enforcement Agency ("CSEA") filed a motion seeking to modify child support. As required by statute, the CSEA completed a Child Support Computation Worksheet for a shared parenting order, and calculated appellant's child support obligation as $456.68 dollars per month. The CSEA stated that "this amount does not reflect any adjustment which may be appropriate in view of any additional time Mr. Fox may spend with their child, pursuant to the terms of their Separation Agreement filed herein on December 23, 1998."
{¶ 6} Thereafter, on August 16, 2002 appellant filed a Motion to Modify Shared Parenting Plan, which sought a two week on, two week off, parenting arrangement. On August 28, 2002 appellant filed a motion requesting that the court conduct an in camera interview of Austin pursuant to Ohio Revised Code §
{¶ 7} After various continuances, the court conducted an evidentiary hearing on January 22, 2003 on the issues pertaining to child support and the shared parenting plan. The court noted that the parties stipulated to the facts necessary to make the calculation of child support pursuant to the Child Support Worksheet contained in § 3109.022, and asked the parties to submit proposed child support calculations. As to the shared parenting plan, the court found that appellant had failed to meet his burden of demonstrating changed circumstances as required by Ohio Revised Code §
{¶ 8} However, on June 12, 2003 the court conducted mediation between the parties, wherein they agreed to a new parenting plan. Under the new plan, agreed to by the parties and ordered by the court on August 14, 2003, appellant has the right of parenting time with Austin on an alternating weekend basis from Thursday evenings until Monday morning, as well as every Tuesday evening. Modifications were also made to the rights of parenting time on holidays and over the summer for both parties.
{¶ 9} After the parties submitted child support calculations and supporting legal memoranda, the court filed a judgment entry on December 2, 2003 granting the motion to modify child support and ordering appellant to pay child support in the amount of $456.68 per month. The number was calculated based on the parties' stipulated incomes of $39,401.58 for appellant and $38,401.58 for Debra. The court established the effective date of the modification as "the date on which the instant motion was filed, August 4, 2003."
{¶ 10} This appeal followed and appellant now asserts four assignments of error. In addition, Debra has cross-appealed in this action, asserting one assignment of error. We will address these in turn.
{¶ 11} Issues of child support are reviewed under an abuse-of-discretion standard. Pauly v. Pauly (1997),
{¶ 12} When calculating an amount of child support to be paid by an obligor, the Revised Code requires that the court or agency making the determination do so "in accordance with the basic child support schedule, the applicable worksheet, and the other provisions of sections
{¶ 13} A court may only modify an existing child support order if, after recalculating the amount of support required to be paid pursuant to the schedule and the applicable worksheet, the recalculated amount "is more than ten per cent greater than * * * the amount of child support required to be paid pursuant to the existing child support order." R.C.
{¶ 14} Appellant first argues that there is not more than a ten per cent change between the amount of child support calculated at this time and the amount of child support that would have been calculated at the time of the divorce, absent the deviation. Therefore, appellant asserts that there has not been a change in circumstances that would allow the trial court to modify the existing child support order under R.C.
{¶ 15} However, the Ohio Supreme Court established inDePalmo that the ten percent test is to be applied to the amount of the current order. "The ten percent difference applies to the change in the amount of the child support, not to the change in circumstances of the parents." DePalmo,
{¶ 16} Appellant argues next that the trial court erred in failing to continue the deviation the parties agreed to in the Separation Agreement. A court may deviate from the child support guidelines at its discretion, if, upon consideration of the statutory factors listed in R.C.
{¶ 17} The determination whether or not to deviate from this amount is within the discretion of the trial court. As this court recently noted, "[t]here is no authority whatsoever `for requiring a trial court to deviate from the child support guidelines merely because a deviation would be permissible or even desirable." Warner v. Warner, 3rd Dist. No. 14-03-10, 2003-Ohio-5132, at ¶ 20, 2003 WL 22229412, quoting Jones v.Jones (Dec. 17, 1999), 4th Dist. No. 99CA9, unreported, 1999 WL 1254809.
{¶ 18} Appellant relies on the fact that the Separation Agreement provided that "based upon the division of time between the parties, the parties have agreed that a deviation in the calculation of child support is appropriate and in the best interest of the minor child." Appellant asserts that he is entitled to the deviation based on the amount of time spent with Austin. Indeed, the parties adopted a new shared parenting plan, contained in the court's August 14, 2003 "Consent Judgment Entry," whereby appellant's time with his son was increased. Since the parties agreed that appellant's increased time spent Austin justified a deviation in child support that was in the best interests of the child, and appellant's time with Austin has subsequently increased, appellant urges that the court decision not to grant a deviation was in error.
{¶ 19} However, the agreement between the parties that a reduction in child support was in the best interests of the child has little authority. The ultimate goal of the law in this area is to provide for the best interests of the child. Marker,
The law favors settlements. However, the difficult issue ofchild support may result in agreements that are suspect. Incustody battles, choices are made, and compromises as to childsupport may be reached for the sake of peace or as a result ofunequal bargaining power or economic pressures. The compromisesmay be in the best interests of the parents but not the child.
DePalmo,
{¶ 20} Appellant was therefore saddled with the burden of demonstrating to the trial court that he should be granted a deviation. However, the Ohio Supreme Court has held that a party to a shared parenting plan is not automatically entitled to a set-off or credit for time spent with Austin under the plan.Pauly,
{¶ 21} Therefore, we conclude that the trial court did not abuse its discretion when it refused to deviate from the amount calculated in accordance with the child support guidelines. Appellant's first assignment of error is overruled.
{¶ 22} Appellant's second assignment of error coincides with the assignment of error asserted by Debra in her cross-appeal. For ease of discussion, we choose to address these assignments of error together. Appellant asserts:
Second Assignment of Error The trial court erred as a matter of law when it failed toorder that the new child support amount commence upon the filingof the judgment entry for equity would demand such a date basedupon the appellee's failure to allow the child supportenforcement agency to consider the deviation factors provided forwithin the decree of dissolution.
Debra's cross-appeal asserts:
The court erred in ordering the modification of support dateretroactive to August 4, 2003 in its order of December 2, 2003.
{¶ 23} As noted previously, issues of child support are reviewed under an abuse of discretion standard. Pauly v. Pauly
(1997),
{¶ 24} R.C.
{¶ 25} In Tobens, this Court held that "if a court determines that a support order should be modified, it can only make the modification order effective from the date the motion for modification was filed." Tobens,
{¶ 26} The trial court's December 2, 2003 judgment entry made the order modifying child support effective "the date on which the instant motion was filed, August 4, 2003." The court clearly acted within its discretion by making the modification of child support retroactive to the date the motion for modification was made. R.C.
{¶ 27} Debra, however, argues that the trial court was in error in setting the effective date at August 4, 2003. As stated previously, the Record in this case demonstrates that the CSEA filed its motion for child support modification on April 17, 2002. The December 2, 2003 judgment of the trial court is therefore contradictory.
{¶ 28} As previously stated, it is clear from R.C.
{¶ 29} However, we need not resolve the apparent discrepancy in the intentions of the trial court in this matter. Subsequent to the December 2, 2003 order, the court entered a new judgment revising the previous order. In a January 9, 2004 judgment entry the court ordered that "the effective date for the child support modification at issue herein be April 17, 2002." This is the date of the initial motion for modification of child support, and is thus within the discretion of the trial court.
{¶ 30} Therefore, we hold that the court did not abuse its discretion in making the effective date for the modification of child support retroactive to the date CSEA filed the motion for modification. Based on the foregoing, Debra's cross-assignment of error is rendered moot, and appellant's second assignment of error is overruled.
{¶ 31} When reviewing a trial court's order regarding compensation to a guardian, an appellate court applies the abuse of discretion standard of review. Robbins v. Ginese (1994),
{¶ 32} The trial court has an obligation to provide an opportunity for parties to be heard on motions pending before the court. Id. However, we find no authority compelling an evidentiary hearing in this circumstance, as appellant had ample opportunity to be heard on his objections to the guardian ad litem fees.
{¶ 33} In Beatley, the Fifth District Court of Appeals found that a trial court did not abuse its discretion on ruling on a memorandum in opposition to guardian ad litem fees without holding an evidentiary hearing. The court found that the appellant in that case was given an opportunity to be heard on the issue: "Appellant filed a memorandum in opposition to the guardian's request for fees * * *. * * * The record reflects that the judge had ample information to determine the reasonableness of the guardian's fees * * *." Id. at ¶ 10.
{¶ 34} In this case, appellant filed objections to the guardian ad litem's fees prior to the court's ruling on the motion for fees. Moreover, it is apparent from the Record that the court had a great deal of experience with the case and the parties. As in Beatley, "the record reflects that the judge had ample information to determine the reasonableness of the guardian's fees." Id. Therefore, we find that the court did not err in ruling on the motion based on the information in the pleadings and his experience with the case, without holding an evidentiary hearing.
{¶ 35} Based on the foregoing, the third assignment of error is overruled.
{¶ 36} A trial court ruling concerning a modification of parental rights should not be overturned absent an abuse of discretion. Masters v. Masters (1994),
{¶ 37} A trial judge's discretion on custody matters is not absolute, however. When reviewing a motion to modify a shared parenting plan, a trial court is constrained by the limits of R.C.
The court shall not modify a prior decree allocating parentalrights and responsibilities for the care of children unless itfinds, based on facts that have arisen since the prior decree orthat were unknown to the court at the time of the prior decree,that a change has occurred in the circumstances of the child, thechild's residential parent, or either of the parents subject to ashared parenting decree, and that the modification is necessaryto serve the best interest of the child . . .
This provision prohibits the court from altering a prior order absent a showing that a change in circumstances has occurred and that modification of the previous custody order would be in the best interests of the child. Waggoner v. Waggoner (1996),
{¶ 38} Additionally, the change in circumstances "must be a change of substance, not a slight or inconsequential change."Davis,
{¶ 39} R.C.
{¶ 40} Appellant asserts several factors allegedly demonstrating that a change of circumstances has occurred: (1) that both parents have now remarried and the new spouses "have been integrated into each of the parties homes," (2) that there is a "significant relationship" shared between the child and appellant's new wife, (3) changes which have occurred in the parenting time schedule that "[have] occurred based upon the needs and the age of the minor child." For the following reasons, we find that the trial court did not abuse its discretion in finding that appellant had failed to meet his burden under R.C.
{¶ 41} First, the mere fact that both parties have subsequently remarried is insufficient to demonstrate a change in circumstances. In Davis, the Ohio Supreme Court held that "[w]hile a new marriage, alone, usually does not constitute a sufficient change in circumstances, a new marriage that creates hostility by the residential parent and spouse toward the nonresidential parent, frustrating attempts at visitation," may constitute a change in circumstances. Davis,
{¶ 42} In this case, although there is understandable friction between the parties and evidence demonstrating disagreements over vacation schedules, there is little evidence demonstrating that Debra ever attempted to deny appellant his visitation rights under the shared parenting plan. The record indicates one incident where Debra attempted to keep Austin over the holidays even though appellant was given custodial rights during that period. This, however, was not based upon hostility between the parties but on Austin's wishes, who had been forced to travel several years in a row and merely wished to spend that Christmas with his newborn brother.
{¶ 43} Moreover, it is apparent from the record that appellant had exercised more parental rights and spent more time with the child that he was granted under the shared parenting plan. This extra time was agreed to by Debra. Therefore, there is no evidence that Debra was attempting to prevent appellant from exercising his visitation rights either before or after her new marriage. The trial court acted within its discretion in finding that this failed to demonstrate a sufficient change in circumstances.
{¶ 44} Second, appellant's claim that Austin's relationship with appellant's new wife demonstrates a change in circumstances is not persuasive. As already indicated, a parent's remarriage alone is not enough to demonstrate a change in circumstances. Additionally, any change this factor brings is counterbalanced by the fact that Austin enjoys a significant relationship with Debra's new husband and their newborn child.
{¶ 45} Finally, changes in the parenting schedule "based on the age and needs of the child" are insufficient to demonstrate a change in circumstances. Change in the child's age alone is not a sufficient factor. Davis,
{¶ 46} Moreover, it is clear from the record that the parties had agreed to various changes in the parenting schedule in order to accommodate changes in the child's activities. These changes were mutually agreed to by the parties, as required by the Separation Agreement. Thus, it was within the trial court's discretion to find that the current parenting plan could sufficiently deal with the changing needs of the child, and that therefore there were no changed circumstances.
{¶ 47} For these reasons, the fourth assignment of error is overruled, and the judgment of the Common Pleas Court, Domestic Division, of Hancock County, Ohio, as to each of the foregoing assignments of error, is affirmed.
Judgment affirmed.
Cupp and Bryant, JJ., concur.
